Mayor Bill de Blasio is mandating COVID vaccines or weekly COVID tests for city health workers. The mayor is also urging private sector employers to consider mandatory vaccinations. Here is some of what he said from Channel 7 Eyewitness News:
On Friday, de Blasio encouraged businesses "to move immediately to some form of mandate" for vaccinations.
It's his latest effort to fight a surge of the more contagious Delta variant.
"We tried purely voluntary for over half a year, we tried every form of incentive, so we have reached the limit of a purely voluntary system, it's time for more mandates," de Blasio said.
When he was asked if the city would consider a mandatory COVID pass for most social activities, like France, de Blasio said it's a "direction we need to seriously consider."
"Getting vaccinated is smart in general, it's smart, if you want to attend big events, it's just smart," he said. "So, I'd say to everyone, if you want to keep going to these great things, go get vaccinated."
The mayor's remarks came just two days after he imposed a mandate on employees of the city's public hospital system and the health department's community clinics.
Those employees must either be vaccinated or face weekly coronavirus testing.
Success Academy ordered staff to get COVID vaccines in May in order to work in schools this fall.
What about public school educators? The UFT has opposed mandatory vaccinations on HIPAA (privacy) grounds.
Gothamist covered this in May. An excerpt:
United Federation of Teachers president Michael Mulgrew has repeatedly said teachers should not have to disclose whether they’ve been vaccinated under federal health privacy rules.
That claim does not appear to be accurate. The state does retain the authority to mandate COVID-19 shots for academic staff.
“Public schools can require vaccinations of teachers as a condition of employment, with disability and religious exemptions as required by the U.S. Equal Employment Opportunity Commission (EEOC),” said [Professor Allison] Hoffman from Penn Law. “While the union might claim that such conditions are contrary to teacher contracts, asking a teacher to provide health data is not a violation of HIPAA, the federal privacy law.”
Mulgrew wrong? Shocking.
One of the main arguments the anti-vaxxers use is that the COVID vaccines are under emergency Use Authorization and so they cannot be mandated until they go through the FDA's regular approval process. Gothamist covered the EUA issue. While under EUA it may be legal to mandate the vaccine for work but not a slam dunk.
“The legality of mandates is less clear under an EUA because the vaccine has not undergone the full FDA approval process with sufficient efficacy and safety data,” said Professor Allison Hoffman, an expert of health care law at the University of Pennsylvania Carey Law School. “There is language in the EUA statute that individuals have to be informed of the right to accept or refuse the product, and the consequences of doing so. This language implies a right to refuse.”
A policy analysis published in April by the Kaiser Family Foundation adds that “Others have questioned whether the reference to “consequences” of refusing a vaccine subject to an EUA includes not only potential health consequences but also other adverse outcomes such as loss of employment.”
Let's go to that Kaiser study:
More generally, however, it is unclear whether COVID-19 vaccines can be mandated while operating under an EUA, and courts have not yet ruled on this issue.
Back to Gothamist:
But once a vaccine receives approval, states can definitely mandate it for schools, Hoffman added, as they have done across the nation with varying types of exceptions.
Pfizer submitted a regular approval application on May 7, 2021. The FDA has until January to make a decision but given the state of the pandemic, we would be surprised if it isn't done sooner.
“The Prescription Drug User Fee Act (PDUFA) Goal Date of January 2022 reflects the PDUFA deadline for Priority Review and does not mean approval will not happen before that time. Quite to the contrary, the review of this BLA (Biologics License Application) has been ongoing, is among the highest priorities of the agency, and the agency intends to complete the review far in advance of the PDUFA Goal Date,” according to the FDA.
We wrote about mandating vaccinations for NYC teachers in May which led to a discussion in comments. We noted that a huge majority of parents and educators in a survey done by Educators of NYC favored mandatory vaccinations for NYC school workers if there were medical exemptions.
APPLYING MODERN CONSTITUTIONAL LAW
Given the changes in constitutional law, public health, and government regulation, what kinds of public health laws that address contagious diseases might be constitutionally permissible today? A law that authorizes mandatory vaccination during an epidemic of a lethal disease, with refusal punishable by a monetary penalty, like the one at issue in Jacobson, would undoubtedly be found constitutional under the low constitutional test of “rationality review.” However, the vaccine would have to be approved by the FDA as safe and effective, and the law would have to require exceptions for those who have contraindications to the vaccine.
If we accept that mandatory vaccines as a condition of employment with medical exemptions are legal and the only possible legal hurdle left is the Emergency Use Authorization, the issue comes down to whether a mandate is desirable in NYC schools. I would agree with NYC Educator that the answer is yes.
He cited a Chalkbeat NY article that showed the UFT is right now on the fence concerning mandatory vaccination for members:
“Thousands of UFT members have already been vaccinated through programs sponsored by the union, the city, and the state,” Alison Gendar, a teachers union spokesperson, wrote in an email. “We will be working with the city, state, and our own independent medical experts on safety protocols for this fall.”
That to me is UFTeze for we're seeing how the wind is blowing on mandated vaccines. I don't think that is a strong enough stand.
While Chalkbeat reports that at least 58% of DOE employees are vaccinated, that is not sufficient. The question now is if the UFT and city are willing to stand up to right-wing and other anti-vaxxers who are literally putting public health in jeopardy by refusing the jabs.
Dr. Kavita Patel warned that the longer people wait to get vaccinated, “the more it poses a risk down the line for even those of us who are vaccinated.”
“It’s not just that vaccinations work, it’s that we have to vaccinate the whole world, and the more people that are unvaccinated or remain unvaccinated, the virus replicates. As it replicates, it mutates, and the more efficient it gets with mutations, that’s where you get variants like delta,” said Patel, a former Obama administration policy aide.
Mayor de Blasio and President Mulgrew need to act now as the time for the two-dose vaccines to take full effect is five to six weeks after the first shot and school starts on September 9 for most DOE employees.
Should we accept the de Blasio compromise and call for mandatory COVID vaccines of DOE employees or weekly proof of a negative COVID test until the FDA fully approves the COVID vaccines or should the UFT push for COVID vaccinations now as a condition of employment in a New York City public school? Or, do we stand with the anti-vaxxers? I am for the first two choices but lean toward a hard mandate with only medical exemptions granted.